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Still More Evidence That David Barton’s History Simply Cannot Be Trusted

Several times, we have heard David Barton make the absurd claim that biblical law was directly incorporated into the U.S. Constitution through the Seventh Amendment, which he then uses to assert that laws legalizing abortion and gay marriage are unconstitutional.

Lately, Barton has tried to bolster this argument by citing an obscure 1913 Texas Supreme Court ruling in a case called Grigsby v Reib, which he claims proves that America can never accept a definition of marriage that differs from God’s definition.

In Barton’s telling, this case was about efforts to attain legal recognition for secular “civil unions” that were separate from marriage as a religious institution but which the court denied on the grounds that “government is not allowed to redefine something that God himself has defined.”

On his radio show yesterday, Barton once again cited the case and read excerpts from the decision to argue that gay marriage can never be legal:

Marriage was not originated by human law. When God created Eve, she was a wife to Adam; they then and there occupied the status of husband to wife and wife to husband … The truth is that civil government has grown out of marriage. which created homes, and population, and society, from which government became necessary. Marriages will produce a home and family that will contribute to good society, to free and just government, and to the support of Christianity. It would be sacrilegious to apply the designation “a civil contract” to such a marriage. It is that and more; a status ordained by God.

The key finding in this case, Barton asserts, is that the court basically ruled that “we can’t do something different than what God’s done on” the issue of marriage.

Given that nothing that Barton says ought ever to be taken at face value, we decided to read the court decision for ourselves and, not surprisingly, found that Barton’s interpretation of the ruling is entirely misleading.

The case involved a woman named Jessie Stallcup, who claimed to have been the wife of a widower named G.M.D. Grigsby and who had sued Grigsby’s sister for control of his estate following his death. Stallcup was a prostitute whom Grigsby used to visit and she claimed that the two had agreed to become husband and wife, though they never held a ceremony, nor did they cohabitate or take any other actions to signal that they were now living has husband and wife.

The case heard by the Texas Supreme Court revolved around Stallcup’s contention that she lost her lawsuit because the trial court ignored a binding appellate court precedent that stated that a common law marriage “requires only the agreement of the man and woman to become then and thenceforth husband and wife. When this takes place, the marriage is complete.”

The Texas Supreme Court disagreed with Stallcup’s contention, pointing out that the ruling in question involved a couple that had lived and presented themselves as husband and wife following their agreement, with the Texas Supreme Court stating that it takes more than a simple verbal agreement to constitute a legitimate marriage.

To demonstrate this point, the Texas Supreme Court proposed a hypothetical situation in which a man and a women met for the first time, agreed to become man and wife, and then went their separate ways, never to see one another again. This obviously would not constitute a binding marriage, the court found, and neither did the relationship between Stallcup and Grigsby on the grounds that, beyond their apparent agreement, they never took any further steps to establish themselves as husband and wife.

“It would be sacrilegious” to give legal standing to such relationships, the court found, because it would then give complete strangers the right to contest seemingly every inheritance by simply claiming to have been the secret spouse of the deceased.

Contrary to Barton’s claims that this case enshrines divine principles about marriage into our civil laws, the court repeatedly notes that marriage is a nothing more than a civil contract that requires “neither license nor solemnization of religious or official ceremony” to be legally binding.

​Barton claims that this case was about trying to create a secular alternative to marriage, which the court slapped down because there can never be any legal marriage that does not correspond to “God’s definition.” In reality, the case addressed the issue of whether a supposedly secret verbal agreement to become husband and wife constitutes a legally binding and recognizable common law marriage and whether the relationship between Stallcup and Grigsby qualified as one under the law, with the court ruling that it did not because it didn’t meet the most basic requirements.

This is just one more example of Barton’s willingness to intentionally and flagrantly misrepresent history in order to promote his religious and political agenda.